Agpuldo Maybel Galiza v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1756/2018

[2020] HKCFI 1112

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1756 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The application applies for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 8 August 2018 (“the Board’s Decision”) with the Director of Immigration (“the Director”) as interested party.

2.The applicant is not legally represented and she did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to her. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 25 September 2019.

3.Leave was granted to the applicant to amend Form 86 by deleting USM to be replaced by the Board as respondent and deleting her name in the interested party column, to be replaced by the Director.

The applicant

4.The applicant is a national of the Philippines. She came to Hong Kong and worked as a domestic helper until 5 March 2016. She overstayed since 6 March 2016. She surrendered to the Immigration Department on 18 May 2016. She lodged her non‑refoulement claim on 13 February 2017.

5.In support of her claim, she said that if refouled, she feared that she would be harmed or killed by her husband Agpuldo Walter.

6.The events that led her to come to Hong Kong are set out below.

a.     She married her husband in 2003 and she gave birth to a daughter. Walter was a gang member of Gamma Kappa Rho, a powerful gang with political connections. He suspected that she was unfaithful to him. He assaulted her with slapping, kicking and pulling her hair.

b.     Whenever after he had taken drug, Walter abused her by kicking, pulling her hair or hitting her with wooden stick. This had continued until 2008.

c.     Around mid-2008, she worked as a domestic helper in Hong Kong. Her husband did not like the idea. She returned to the Philippines in 2011.

d.     In 2016, the new president was elected. He enforced the law against drugs more strictly. Walter was investigated. He suspected her to have disclosed the information to police.

e.     She came back to Hong Kong and worked as a domestic helper.

The Director’s Decision

7.The Director considered her application in relation to the following risks:

a.     risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By Notice of Decision dated 12 January 2018 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision and she attended a hearing before the Adjudicator on 15 June 2018.

10.By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusion that the applicant was not entitled to non‑refoulement protection in Hong Kong on any of the grounds under the Unified Screen Mechanism [65]. She had found the facts below.

a.     Her evidence that Walter was a gang member and he dealt in drugs was not credible. The Board took the view that she had fabricated her claims regarding Walter’s involvement in illegal drugs [41].

b.     Her evidence that Walter suspected her to have disclosed information to the authorities that he was involved in criminal gang was not credible [42].

c.     The Board took the view that the most serious assaults she mentioned were relatively minor and did not result in any serious injuries [44].

d.     It was not satisfied that Walter would attempt to harm or threaten her upon her return to the Philippines [45].

e.     She would have state protection and other protections from the organizations in the Philippines [46 & 47].

Application for leave to apply for judicial review

12.The applicant filed Form 86 dated 27 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, she did not state any reasons why she considered the Board’s Decision was wrong.

DISCUSSION

14.The applicant appeared before me. She said that she was free to state her case before the immigration officer and the Adjudicator at the Board hearing.

15.The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018 held that the Board, having considered the evidence, is entitled to reach its own decision of facts, which is final. [42], subject to judicial review. However, there is no evidence to show that the Board erred in fact finding or application of the laws to her case.

16.The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

17.Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 10^th day of June 2020

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1